MAC GREEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Green pleaded nolo contendere to aggravated assault, resisting an officer with violence, and petit theft, receiving concurrent probationary sentences with jail time. After violating his probation, the trial court modified the terms by extending the probationary period and jail sentence. The appellate court affirmed, holding that the modification was permissible as it effectively converted the concurrent probation terms to consecutive terms.
The appellate court affirmed the modification order, holding that it permissibly converted the originally concurrent probation terms to consecutive terms. The court reasoned that while the modification order was ambiguously worded, it should be construed to uphold its validity, and the trial court was authorized under Florida statute to impose consecutive probationary sentences that it could have originally imposed.
[1] A court may extend a probationary term beyond the maximum sentence for a crime only if expressly provided by law.
[2] A court may modify probation terms to impose consecutive sentences that would have been authorized at the original sentencing, even if the original sentences were imposed…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Unless expressly provided by law, a probationary term may not exceed the maximum sentence prescribed for the crime.”
Establishes the fundamental statutory limitation on probationary terms in Florida law.
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Join FLexlaw to unlock all legal intelligenceGreen pleaded nolo contendere to three offenses: aggravated assault and resisting an officer with violence (both third-degree felonies) and petit thef…
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GRIMES, Judge.
Appellant pled nolo contendere to aggravated assault, resisting an officer with violence, and petit theft. The court placed him on probation for the first two offenses for concurrent periods of five years upon the condition that he spend six months in county jail. The court also placed him on probation for a concurrent period of sixty days for the petit theft. As a result of a subsequent violation of the conditions of probation, the court modified the probation for aggravated assault and resisting an officer with violence by extending appellant’s probationary period for five more years and by requiring him to spend an additional year in jail. Appellant appeals from the order of modification.
There is sufficient evidence to sustain the finding that appellant violated his probation, and this point needs no further discussion. However, appellant’s argument that the court improperly modified the terms of his probation merits further consideration.
Aggravated assault and resisting an officer with violence are both felonies of the third degree. §§ 784.021, 843.01, Fla. Stat. (1979). The maximum sentence for a felony of the third degree is five years. § 775.082(3)(d), Fla.Stat. (1979). Unless expressly provided by law, a probationary term may not exceed the maximum sentence prescribed for the crime. Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976). Thus, the court originally set appellant’s probationary term for both crimes at the maximum of five years.
The order of modification is not entirely clear in that it refers to both crimes; yet, it purports to extend the period of probation in the singular in the nature of a general sentence. Therefore, if the order of modification is read to mean that the court was extending the term of probation for both of the crimes to ten years, albeit concurrently, it would be illegal. However, we choose to construe the order in a manner which will uphold its validity. The court could have originally placed appellant on probation for consecutive five year terms but chose to impose the two concurrently. Now that appellant has violated his probation, there is nothing to prevent the court from imposing a sentence which would have been originally authorized. § 948.06(1), Fla. Stat. (1979). Accordingly, we hold that the order of modification simply had the effect of making the probation terms consecutive.
AFFIRMED.
HOBSON, Acting C. J., and DANAHY, J., concur.
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Evans v. State, 675 So. 2d 1012 (Fla. 4th DCA 1996)…nt on appeal that the trial court erred by changing his concurrent sentence to a consecutive term in violation of his double jeopardy rights and find it to be without merit. See Gauthier v. State, 605 So. 2d 1284 (Fla. 1st DCA 1992); Green v. State, 392 So. 2d 333 (Fla. 2d DCA 1981). We also reject appellant’s final point on appeal that the trial court erred in sentencing him as an habitual offender following a violation of probation when the necessary steps to establish habitual offender status were not take…
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Toombs v. State, 404 So. 2d 766 (Fla. 3d DCA 1981)…pra; Hutchinson v. State, 360 So. 2d 1160 (Fla. 1st DCA 1978), or could have again placed Toombs on probation for a term not to exceed fifteen years, the maximum allowable prison sentence, State v. Holmes, 360 So. 2d 380 (Fla. 1978); Green v. State, 392 So. 2d 333 (Fla.2d DCA 1981); Townsend v. State, 378 So. 2d 1313 (Fla. 1st DCA 1980), from September 6, 1977, the date when the court first placed Toombs on probation. While time served on probation need not be credited against any prison sentence imposed, § 9…
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McCASKILL v. State, 728 So. 2d 1183 (Fla. 5th DCA 1999)…tention is made here that the court exceeded the guidelines or the maximum penalty prescribed by law. Violation of appellant’s probation authorized the court to impose any lawful sentence which could have originally been imposed. See Green v. State, 392 So. 2d 333 (Fla. 2d DCA 1981). AFFIRMED. COBB and HARRIS, JJ., concur. . The trial court reluctantly went along with the state’s recommendation of a concurrent term on the last robbery, but made it clear, before accepting appellant’s plea on the probation v…
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- Watts v. State, 328 So. 2d 223 (Fla. 2d DCA 1976)